Standing for the Constitution

Once a high-level Reagan-era diplomat, Alan Keyes is a long-time leader in the conservative movement. He is well-known as a staunch pro-life champion and an eloquent advocate of the constitutional republic, including respect for the moral basis of liberty and self-government. He has worked to promote an approach to politics based on the initiative of citizens of goodwill consonant with the with the principles of God-endowed natural right.

Ed. note: Alan Keyes has been writing for WorldNetDaily since
before he announced his run for the presidency. We are proud to have him
as our regular columnist, but his appearance here does not constitute an
endorsement of his candidacy. WorldNetDaily also prints occasional
columns by Libertarian Harry Browne, and we welcome column submissions
by presidential candidates of any other party.

Constitutional illiteracy is becoming something of a political
epidemic these days, and one of the results is that some of the most
important prudential decisions that face those who hold high federal
office aren’t even being considered by anyone. But if we read the
Constitution, and take it seriously as an instrument by which the
rational animal governs himself, some surprising possibilities emerge.
This week I want to discuss two of them — the real meaning of the First
Amendment, and the corresponding possibilities for a constitutionally
literate chief executive to restore liberty to the American people
despite what the Supreme Court says.

Whenever I give a speech, I emphasize that the rights Americans
cherish are proclaimed by our Declaration of Independence to be an
endowment from our Creator, God. And one of the questions I most
frequently then get from the press is how I would, as president, respect
the constitutional doctrine of the separation of church and state. My
answer is always the same — I ask to be shown where this doctrine
appears in the Constitution, because I know it doesn’t.
Usually, the best they can do is stammer something about the First
Amendment.

But the First Amendment doesn’t say anything about a general
separation of church and state. It reads: “The Congress shall make no
law respecting an establishment of religion, or prohibiting the free
exercise thereof.”

Even people who are trying to read that sentence literally often
misunderstand it. It doesn’t just prohibit the Congress from
establishing a national religion. It entirely forbids the Congress to
pass legislation that has anything to do with the establishment of
religion — for or against. The First Amendment tells the Congress that
the establishment of religion is not a concern of the federal
government, and that the federal government should keep its hands off of
the religious practices of the people and communities of the United
States.

The First Amendment thus leaves the question of establishment
squarely in the hands of the state and local governments. I marvel at
the tolerance of the American people for groundless illogic in the
decision-making of our judges. The First Amendment was intended to make
sure that states would not be subject to any uniform domination by the
federal government on matters of religion. But by perversely
interpreting the 14th Amendment, our judges have applied it to the
states in such a way as to allow the federal courts to impose a uniform
absence of religion on our people.

How can this be? The First Amendment was intended to make sure the
federal government couldn’t touch the religious practices of the states,
and yet now it is being used as an excuse to destroy even the most
minimal religious expressions at the state and local level. It is
difficult to resist the conclusion that this Orwellian revocation of our
right to the free exercise of religion was made possible by a growing
ignorance in our people of both the letter and the meaning of the
Constitution.

Accordingly, a renewed understanding of these things could give rise
to a refreshing “just say no” campaign to such obviously
unconstitutional judicial usurpations. This is particularly true in view
of the fact that the great majority of the suppression of the free
exercise of religion in recent years has not actually been enforced by
government, but has been based on the presumption that has somehow grown
up that certain things just cannot be done. The judges — and the
liberal elites in media, academy and government — have bluffed us into
submission.

But remembering the real nature of our Constitution offers a remedy
for this situation, particularly if we begin to elect leaders who
understand it. A second surprise emerges if we recall what is really
meant by the “checks and balances” that we all supposedly understand to
be a key to our constitutional system.

Suppose that the Supreme Court of the United States decides, in a
given, particular case, that an employee of the federal government
cannot have the Bible on his desk at work because in the Court’s view
that somehow interferes with the separation of church and state — which
is, of course, a mythological concept anyway, in terms of the
Constitution. So, the Supreme Court says that, and it says that’s the
Constitution.

The president of the United States has taken an oath to uphold,
protect, defend, the Constitution of the United States. That means that
he has sworn to preserve the Constitution in its integrity. Suppose now
that the president considers that Supreme Court decision and decides
that it has no basis in our Constitution, our heritage, or our law.
Suppose that the president sees that the Supreme Court decision is
actually violating the Constitution, by interfering with the free
exercise of religion on the part of his federal employee.

In this circumstance, is the president obligated to carry out the
decision of the Court?

First of all, the Supreme Court’s judgment only applies to that
particular case. We always say that the Supreme Court “struck down” this
and that law. But the only thing that the Supreme Court can actually do
is decide individual, particular cases. And its judgment only applies in
that case. The reason we say it has struck down a law or otherwise had a
general effect on our nation’s laws is because of a simple and generally
sound line of reasoning. We see that the Court has made its decision in
a particular case, and that it will presumably rule that way in every
case like it. We presume, in normal circumstances, that the judgment of
the Supreme Court is the best legal judgment we will get on the
question. And we presume that lower courts will follow the precedent of
the Supreme Court.

But just as the Court is obliged to interpret the Constitution in a
particular case because that is its job, so the president is obliged to
interpret the Constitution in order to do his job, which is to carry out
the law in accord with the Constitution. And the branches of the federal
government are coequal. So if the president disagrees with the Court,
the Court does not automatically get its way.

I believe that in respect for the Court’s authority, the president
must give the Court its way in the particular case it has decided. But
the president does have a general power of pardon. In the example we are
considering, he could pardon the employee who has been convicted of
taking a Bible to work.

He could also accompany his pardon with a general statement that he
will pardon every employee in a similar situation during his tenure as
president, because the law forbidding Bibles at work is
unconstitutional. What happens then to the Court’s judgment? During his
tenure as president, it is of no consequence — it is null and void.

Wouldn’t this provoke the dreaded “Constitutional Crisis?” Well, that
depends on what is meant by crisis. What it would do is require that the
people holding the various high offices in the federal government exert
themselves and the powers of their respective offices in a political
struggle to determine which account of the Constitution would prevail.
If the Congress thinks that the president is irresponsible and lawless,
disobeying the Court in a matter where the Constitution is clear, it
must impeach him and remove him from office.

That’s the way the Constitution is supposed to work. Presidents
aren’t supposed to roll over and play dead when our judges start to act
like tyrants. They are supposed to defend the integrity of the
Constitution, and the liberties of our people. The Congress isn’t
supposed to roll over and play dead when the president acts like a
tyrant. They are supposed to impeach him and kick him out of office. And
the resulting interplay of men, argument, and the powers of office, is
intended to be the occasion for the people’s informed judgment
eventually to prevail.

We must start to elect people to these offices who will defend our
liberties, defend the integrity of the Constitution, and take on the
full responsibilities they are supposed to exercise as the stewards of
that Constitution. I believe that both president and Congress, in recent
decades, have failed us in this regard. And in doing so they have
unleashed a judicial tyranny that is destroying the soundness, moral and
otherwise, of our land.

It is time to fight back. We can do so by making clear that through
our representatives we are going to remind the Court that they do not
have the supreme authority to dictate to the entire society in vital
matters concerning Constitutional integrity and liberty.

A renewed exercise of our Constitutional sovereignty as a people is
vital. At stake is not merely prayer in schools and Bibles on desks.
This struggle is already becoming a matter of the integrity of our most
vital institutions. There are state courts right now that are poised to
require us to accept homosexual marriage throughout the country. An
assault is beginning on the elemental institution of our entire
civilization. Are we to believe that we are defenseless against this
assault, simply because despotic judges say so?

The Founders were wiser than this. They wrote a Constitution that put
within the power of the representatives of the people the capacity to
act on behalf of the people, so that each branch is given the authority
necessary to check and restrain the tyrannical impulses of the others.
That is what we will need in order to make sure that in these cases the
courts do not destroy our national probity, nor undermine the virtues of
our constitutional order.

In our votes, in our actions, and in the expectations we form of our
elected officials, we must act again as free men. We must be confident
in our own judgment when it comes to the most important things, and then
willing to insist that the government that is our instrument conform to
that judgment. We need to read the Constitution, and insist that our
leaders do so as well — in every branch of government. And then we need
to have the stomach to support leaders who are prepared to struggle
within the government to return it to constitutional integrity.

Alan L. Keyes, currently running for the GOP presidential nomination,
was U.S. ambassador to the United Nations during the Reagan
administration. The author of two books, “Our Character, Our Future”
and “Masters of the Dream,” Keyes is recognized as a leader in the
conservative movement and one of today’s most demanded orators.